Rulemaking

Jargon Alert Rule, legislative rule, or regulation They all mean the same thing Has the same effect as a statute passed by the legislature Non-Legislative rule Has no legal effect, but shows what the agency thinks the law is Many names - interpretive rule, guidelines, guidance document, anything but rule or regulation

The Agency as Legislature The modern rulemaking process got started in the 1950s and really accelerated in the 1970s Parallels the growth of federal agencies In theory, the federal courts encourage agency rulemaking. It reduces litigation and simplifies the litigation that ensues.

Definition of a Rule APA 551(4) (4) 'rule' means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing; Not a clear definition Things that are not adjudications or licensing

LA Definition 6) "Rule" means each agency statement, guide, or requirement for conduct or action, exclusive of those regulating only the internal management of the agency and those purporting to adopt, increase, or decrease any fees imposed on the affairs, actions, or persons regulated by the agency, which has general applicability and the effect of implementing or interpreting substantive law or policy, or which prescribes the procedure or practice requirements of the agency. "Rule" includes, but is not limited to, any provision for fines, prices or penalties, the attainment or loss of preferential status, and the criteria or qualifications for licensure or certification by an agency. A rule may be of general applicability even though it may not apply to the entire state, provided its form is general and it is capable of being applied to every member of an identifiable class. The term includes the amendment or repeal of an existing rule but does not include declaratory rulings or orders or any fees.

Functional Definitions General applicability, as opposed to specific parties Prospective Binding on the agency as well as on the public

The Power to Make Rules The power to make rules must be delegated by the legislature. If the enabling legislation (the legislation creating an agency) is silent, the agency cannot make rules The delegation may be broad, allowing the agency great discretion, or very narrow. We will look at the standards for reviewing this delegation later in the course

Must the Agency Make Rules? If the agency has the power to make rules, it has the discretion on what rules to make and when to make them. The legislature can put provisions in the agency legislation requiring that certain rules be made, and the timeframe for making them. The Clean Air Act required rulemaking to determine what pollutants to regulate and to flesh out detailed technical standards Unless there is a legislative directive, it is difficult to get the courts to force an agency to make rules.

Petition for Rulemaking Any interested person can ask the agency to make a rule: APA 553 (e) - Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule. The agency does not have to make the rule, but the agency must answer the petition and explain why it is not making the rule.

Why Make Rules? Many statutes have too little detail to be enforced without additional rules. Rules can be used to tailor a statute to new circumstances. Rules provide a chance for the for the public to participate in the regulatory process Once promulgated, a rule is binding on every party, reducing the need for adjudications.

The Effect of a Rule in an Adjudication The FCC is concerned that concentrated ownership of TV stations is not in the public interest. Licensing is an adjudication, i.e., the applicant is entitled to a hearing if his license is turned down. The FCC issues a rule that no one can own more than five licensed stations. Does an applicant with 5 stations get a hearing when he is turned down based on the rule? No. The rule establishes that you cannot own more than five stations, so there is no factual dispute. Without the rule, the agency would have to determine whether it was in the public interest to limit licenses in each hearing.

Uniformity Rules set up a general framework that treats all parties uniformly Rules are the fairest way to make big regulatory changes If the agency does not have rules, it can change enforcement policy from case to case, and is also at the mercy of judges to accept or reject agency standards

Adoption of National Standards National standards can be adopted through agency rules, harmonizing practice across jurisdictions National building codes CDC guidelines on food sanitation Recommendations of the Advisory Committee on Immunization Practices LA and building codes

Agency Efficiency While a rulemaking can be expensive and time consuming, it can settle issues which might otherwise have to be litigated in every enforcement case Rulemaking can also eliminate many hearings by resolving factual questions In disability cases, rules can be used to establish what constitutes a disability, rather than making it as case by case determination.

Agency Oversight You can control the outcome of rulemaking much easier than that of adjudications Not dependent on ALJs (administrative law judges) This especially important in LA More input from across the agency Input from the public as well Directly controlled by agency policy makers

How Does the Nature of the Enabling Act Affect Rulemaking? Very general laws Limited detail in the statute Any interpretative rule is likely to been seen as a legislative rule because it will provide more limits than the statute. Very specific laws - like the ADA No room for legislative rules Everything is guidance

The Politics of Rulemaking Congress often dodges the hardest issues and leaves them to agency rulemaking Most of these involve cost-benefit analysis: How do you trade off automobile safety with price and fuel efficiency? Are you more worried about delaying the entry of new drugs or the about allowing the sale of a drug with dangerous side-effects? Do you want cheap power at the cost of lots of asthma and the Grand Canyon full of smoke?

Downside of Rulemaking Trials (adjudications) involving single parties can be more flexible in the individual cases Adjudications are useful when you are not sure what the rule should be and need more info and a chance to experiment Rules can be so abstract or overbroad that they are expensive or difficult to follow Like statutes Agencies can promulgate rules that Congress would never pass - Green House Gas Regulations.

Rulemaking Ossification The courts and legislatures have increased the burden on rulemaking, especially in states Rulemaking has gotten so complex and time consuming it has lost some of its value Complicated by regulatory conflict and incompetent agency practice Rulemaking can go on for years What is the legal value of a proposed rule that has not been finalized? The Medicare anti-kickback regulations were delayed for years between the proposed rule and the final rule

Notice-and-Comment Rulemaking APA Procedures http://biotech.law.lsu.edu/Courses/study_aids/adlaw/553.htm The Register The Federal Register LA Register Electronic Notice http://www.regulations.gov

Why Have Public Participation? Public participation has great political benefit in broadening the acceptability of the rules. Public comments can identify technical and legal problems with the rules Publication of proposed rules allows politicians to become involved to protect the interests of their constituents Public participation limits executive power and makes it more palatable to the courts to have agencies making laws While the agency may take comments at public hearings, it is usually done in writing.

Attacking Rulemaking Once a rule has been properly promulgated through notice and comment, attacks on the technical basis of the rule have to be brought relatively soon after promulgation. Constitutional and ultra vires challenges can be brought anytime. Rule challenges are usually in the Court of Appeals, but some enabling acts allow review in the District Courts. The court can enjoin the enforcement of the rule, pending review.